New Jersey Division of Youth and Family Services v. M.G.

February 11, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,v.M.G., DEFENDANT-APPELLANT.IN THE MATTER OF THE GUARDIANSHIP OF N.J. AND Z.J., MINORS.NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,v.L.J., DEFENDANT-APPELLANT.IN THE MATTER OF THE GUARDIANSHIP OF N.J. AND Z.J., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-220-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 22, 2008

Before Judges Lintner, Parrillo and Graves.

In these consolidated appeals, defendant M.G. is the mother, and defendant L.J. is the father of two young boys: N.J., born March 31, 2001, is now six years old, and Z.J., born June 29, 2002, is five years old. N.J. suffers from "pervasive developmental delays," and Z.J. was born with Downs Syndrome. The parents appeal from a judgment entered on January 31, 2007, terminating their parental rights.

On appeal, M.G. presents the following arguments:

POINT I THE DIVISION DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDINGS THAT THE HEALTH AND DEVELOPMENT OF THE CHILDREN WERE AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

POINT II THE DIVISION DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDINGS THAT M.G. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILDREN.

POINT III THE COURT'S FINDINGS THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP [CORRECT] THE CIRCUMSTANCES WHICH LED TO THE REMOVAL OF N.J. AND Z.J. AND THE COURT HAS CONSIDERED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

POINT IV THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

L.J. makes the following arguments:

POINT I THE TRIAL COURT VIOLATED L.J.'S RIGHT OF DUE PROCESS UNDER THE CONSTITUTION, WHEN IT TERMINATED HIS FUNDAMENTAL PARENTAL RIGHTS.

POINT II L.J.'S PARENTAL RIGHTS TO HIS SONS [Z.J. AND N.J.] SHOULD NOT BE TERMINATED BECAUSE THE FINDINGS OF THE TRIAL JUDGE AND THE EVIDENCE ADMITTED AT TRIAL DO NOT SUPPORT A LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THAT TEST WERE MET.

POINT III L.J. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE TERMINATION OF HIS PARENTAL RIGHTS HEARING UNDER FG-07-220-06.

After reviewing the record and applicable law in light of these contentions, we conclude the trial court's findings are supported by clear and convincing evidence, and its legal conclusions are sound. We therefore affirm the judgment terminating defendants' parental rights substantially for the reasons stated by Judge Callahan in his comprehensive oral decision on January 31, 2007.

When biological parents resist the termination of their parental rights, the function of the court is to decide "whether the parents can raise their children without causing them further harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm. [N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)]. The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents. The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child. [Santosky v. Kramer, 455 U.S. 745, 768, 102 S.Ct. 1388, 1402, 71 L.Ed. 2d 599, 616-17 (1982)]. [Ibid.]

While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, our Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). This standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents ...

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